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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/Case Laws/2012-13/1320

Whether hiring of buses to State Road Transportation Company is covered under rent a cab service?

Case:-S K KAREEMUN Versus CCE, HYDERABAD-III
 
Citation:- 2012-TIOL-1472-CESTAT-BANG
 
Brief Facts:- The Department has raised demand of service tax and interest on the appellant under Rent a Cab services due to the fact that the appellant had made available their buses to the Andhra Pradesh State Road Transport Corporation(APSRTC) under agreements where-under  the APSRTC would ply these buses on the pre-determined routes by stage carriage permits held by the bus owners, with a time schedule fixed by the APSRTC, and the bus would provide the services of drivers to the Corporation and would be paid by the Corporation hire charges per km. The conductors employed by the Corporation would collect passenger fares as fixed by the Corporation/State Government. The buses were to be maintained in roadworthy condition by the owners/appellants. The insurance should be taken by the appellant but showing the Corporation as the hirer in the insurance certificates and the Corporation would accordingly pay the premium. The impugned demands are on the gross amounts of hire charges paid to the appellants by the Corporation during the respective periods of dispute and demands are under the head 'rent-a-cab service.
 
Appellant Contentions:- The learned counsel has drawn attention towards the definition of 'tour operator' under section 65(115) of the Finance Act, 1994 and has argued that, once a motor vehicle is covered by a stage carriage permit, it stands outside the levy of service tax. They have also extensively referred to the relevant terms and conditions of the agreement.
 
Respondent Contentions:- The Respondent draws attention towards the definition of “cab” under section 65(20) and “rent a cab scheme operator” under section 65(91) and submits that, on terms and conditions of the agreement and the facts of the case,  the vehicles in question would squarely fit in the definition of "cab" and the operations with such vehicles would get covered under the definition of "rent-a-cab service”. There is no reference to 'stage carriage permit' in any of the agreements though it is not in dispute that all the buses were covered by stage carriage permits. As per the agreements, the buses were to be covered by 'contract carriage permits'. The buses were under the possession and control of the appellants and were operated by the appellants, these vehicles cannot be recognized as "stage carriages" as defined under the Motor Vehicles Act/Rules and, therefore, the appellants cannot validly contest the demands raised under head "rent-a­-cab" service and also relied on the decision in the case of Lok Priya Travels vs. CST, Ahmedabad.
 
Reasoning of Judgment:- We have considered submissions on both sides and we are of the view that the exact nature of the activity undertaken by the appellant has to be examined in detail at final hearing stage. For the purpose of stay application, we have studied the terms and conditions of a specimen agreement. The terms and conditions of the agreements were as follows:
a)    Bus is owned by the appellant and operated as a stage carriage for the corporation.
b)    Bus was to be operated on the said route with the same time schedule fixed by the corporation.
c)    Bus was kept to be it roadworthy condition in terms of the Motor Vehicles Act/Rules by the owner.
d)    It had to be insured to cover all risks and the corporation to be shown as the hirer of the vehicle in the insurance policy.
e)    It was the owner responsibility of the owner to make arrangements for proper prosecution of proceedings either before the Motor Accidents claims Tribunal or other authorities.
f)     Owner was required to comply with all statutory provisions pertaining to labour, insurance.
g)    Owner was required to provide a driver with a valid driving license for operating the vehicle and was also required to pay his wages.
h)    Passenger fares were liable to be collected at the prescribed rates by a conductor employed by the Corporation.
i)      Owner was required to display the Corporation’s advertisement boards/banners on the bus or in its interior and all the revenues arising out of all such advertisement would go to the corporation..
j)     Owner should maintain a log book in the proforma prescribed by the corporation to enter the operational particulars.
k)    Owner or his family members shall not engage themselves in the business of operating other vehicles for contact carriage.
 
From above terms, it is clear that the buses did not fit in the definition of "cab" and the transactions between the Corporation on the one hand and the appellant on the other are not to be covered as squarely falling within the ambit of "rent-a-cab" service. Certain factors emerging from the nature of transactions appear to be incompatible with the features of rent a cab scheme. The buses were admittedly being operated as stage carriage under the cover of stage carriage permits. The routes were allotted by the RTOs as per State Government's policy,  with fixed time table determined by the Corporation, fares rates fixed by the State Government and collected by the Corporation. All these facts appear to converge to features of a public transport system. Finally we find that the activities undertaken by the appellants were much more than mere hiring of buses to the Corporation and hence might not be covered by the definition of "rent-a-cab" service. The case law cited by the Respondent has also been examined and the same does not support the present case in as much as the activity discussed in that case was one of hiring of buses owned by the appellants by a municipal corporation for commuting its employees on all working days of the Corporation and not for public transport. We are inclined to grant waiver of pre-deposit and stay of recovery in respect of the adjudged dues.
 
Decision: - Pre-deposit waived and recovery stayed.
 

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